Lawyers beware of social media | FP Tech Desk | Financial Post

Lawyers beware of social media | FP Tech Desk | Financial Post

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Based on responses from 2,000 companies, more than 40% of those queried said they already ask for instant messages and social media posts in their eDiscovery requests. More than half (58%) of those surveyed said they expect to start managing social media applications as part of their standard eDiscovery diligence this year, which is more than double the 27% who expressed a similar expectation in 2010.

Executives who think these new forms of communication have yet to play a role in major litigation can look as far back as 2004, when CIBC sued Genuity Capital Markets. The accusation was that David Kassie, who had just left his executive position at the bank to start his own financial venture, tried to recruit other CIBC employees to join him.

The “smoking gun” in the case was a series of BlackBerry pin-to-pin messages (the predecessor of BlackBerry Messenger or BBM) that showed Mr. Kassie had indeed solicited his former colleagues.

“David and his group thought they were completely confidential and private,” Ms. Nevin says. “Now after that, every single bank modified its [BlackBerry Enterprise Server] to start capturing those communications, which had a major impact not only in that litigation but also company policies on the use and deployment of BlackBerrys.”

Yet corporations trying to preserve social media data for a potential future eDiscovery face a thus-far insurmountable obstacle: Storing information that, as far as corporate-owned machines are concerned, never existed.

“It is one thing to be able to control and back up the generation of emails, databases, word processing documents and Websites within a corporate network structure,” writes TJ Thurston, chief executive of Litis Consulting, in a white paper published last month.

“It’s a completely different thing when that data (social media posts, online text and video chats, and collaborative document creation in the cloud) resides outside the company and can be generated by un-monitored individuals. Depending on the context of the case, data from social media, chat and cloud computing may be both relevant and discoverable.”

Even if the collection and storage problem is solved, the financial bur­den of such a system would be difficult to fathom. Already, companies are paying millions just to preserve data stored on the hard drives of computers physically in the office.
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